Cite as U.S. v. Murphy, 53 F.3d 93 (5th Cir. 1995)
UNITED STATES OF AMERICA, Plaintiff-Appellant,
V.
CHRISTOPHER SCOTT MURPHY, Defendant-Appellee.
UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 93-2824
Appeal from the United States District Court For the Southern
District of Texas
(May 15, 1995)
Before WISDOM, WIENER, and PARKER, Circuit Judges.
PER CURIAM:
The defendant/appellee was charged, under 18 U.S.C. section
922(q), the Gun-Free School Zones Act of 1990, with possession of
a firearm in an area he knew or should have known was a school
zone. While the case against the defendant was still pending, this
Court, in its decision United States v. Lopez, held that 18 U.S.C.
section 922(q) was unconstitutional on the ground that it was
outside Congressional power under the Commerce Clause. [1] We
reserved decision, however, on whether the statute could be
constitutionally applied if the required nexus to interstate
commerce were alleged. As we stated in dicta, "[c]oncievably, a
conviction under section 922(q) might be sustained if the
government alleged and proved that the offense had a nexus to
commerce". [2]
The government attempted to salvage its case against Murphy in
reliance on this language when it tried to file a criminal
information which alleged a nexus to interstate commerce. [3] The
criminal information alleged:
. . . defendant herein, did knowingly possess, in and
affecting interstate commerce, in an area that the defendant
knew or should have known was a school zone, a firearm--
specifically, a Mossberg 12 gauge pistol grip shotgun; In
violation of Title 18, United States Code, Section 922(q). [4]
The district court refused to file the criminal information and the
government appealed that decision to this Court.
The Lopez decision has since been reviewed by the United
States Supreme Court. The Supreme Court decided to affirm the
decision of this Court and held that the Gun-Free School Zones Act
of 1990 is not within the constitutional power of Congress under
the Commerce Clause. [5] The Supreme Court decided that "[t]he
possession of a gun in a local school zone is in no sense an
economic activity that might, through repetition elsewhere,
substantially affect any sort of interstate commerce." [6] In light
of this decision, we need not address the question we previously
reserved. We AFFIRM the decision of the district court.
FOOTNOTES
[1] 2 F.3d 1342 (5th Cir. 1993), cert. granted, 114 S.Ct. 1536, 128
L.Ed.2d 189 (1990). A circuit split eventually resulted when the
Ninth Circuit Court decided that Section 922(q) is constitutional.
United States v. Edwards, 13 F.3d 291 (9th Cir. 1993). For a
complete discussion of the Lopez decision, see Debra L. Farmer,
United States v. Lopez: The Fifth Circuit Declares the Gun-Free
School Zone Act of 1990 an Unconstitutional Extension of
Congressional Power under the Commerce Clause, 68 Tulane L. Rev.
1674 (1994). For a discussion of both the Lopez decision and the
Edwards decision, see James M. Maloney, Shooting for an Omnipotent
Congress: The Constitutionality of Federal Regulation of Intrastate
Firearms Possession, 62 Fordham L. Rev. 1795 (1994).
[2] Id. at 1368.
[3] The original indictment alleged no nexus to interstate commerce
and was dismissed by the district court. During plea negotiations,
the defendant waived the requirement of an indictment and agreed to
plead guilty to the criminal information. The government used this
waiver to effectively amend the indictment and allege a nexus to
interstate commerce.
[4] Appellant's record excerpts, item 5 at 1-2 (emphasis added).
[5] United States v. Lopez, 1995 WL 2388424, *2.
[6] Id. at *11.